A Dangerous Policy

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For decades, the Supreme Court has kept vigil over the campuses of state universities as, in the words of one memorable 1995 ruling, "peculiarly the marketplace for ideas." No opinion, the Supreme Court has emphasized, is too challenging or unsettling that it can be banned from the college classroom.

Forget the classroom – professors today are fortunate if they can be safe from punishment for an unkind word posted from a home computer on a personal, off-campus blog.

The Kansas Board of Regents triggered academic-freedom alarm bells across America last month with a hastily adopted revision to university personnel policies that makes “improper use of social media” grounds for discipline up to and including termination. (While the board this week ordered a review of the policy, it remains in place.)

While described as a restriction on “social” media, the policy is nothing of the sort. By its own terms, the policy is an assertion of college authority over “any facility for online publication and commentary.” (Kansans, think twice before pushing “send” in the comments section of this article.)

The breathtaking sweep of the regulation – it seemingly would confer jurisdiction over every online appearance, from an interview with Slate magazine to an academic article in a science journal – evidences an eagerness to control the off-the-clock lives of employees that is itself cause for suspicion.

The policy purports to create two categories of online speech. Speech made “pursuant to” or “in furtherance of” official duties is subject to essentially complete regulation, and penalties up to firing may be imposed for any speech deemed “contrary to the best interest” of the institution.

All other online speech is punishable if it adversely affects the workplace, but only after a “balancing analysis” that considers the institution’s interests in “efficiency” against the employee’s interest in addressing matters of public concern.

These categories roughly track the Supreme Court’s employee-speech jurisprudence. But the Kansas regulation dangerously oversimplifies the law of employee First Amendment rights in ways that invite abuse.

The Court’s 1968 ruling in Pickering v. Board of Education marks the headwaters of public employee First Amendment protection. There, in the case of an Illinois teacher fired for a letter to the editor about a school bond issue, the court coined its “Pickering balancing test” to determine whether employee speech may lawfully be punished.

The test requires weighing “the interests of the teacher, as a citizen, in commenting upon matters of public concern” against “the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Pickering was curtailed in the 2006 ruling, Garcetti v. Ceballos, involving a California prosecutor fired over an internal memo critical of the way the police department handled evidence. The Garcetti case essentially recognized that, when a dispute involves speech contained in an official work assignment, that is the government’s speech and not the individual’s. Accordingly, the individual cannot claim a First Amendment violation if the speech displeases a supervisor, and no balancing of interests is even necessary.

Although some lower courts have expansively applied Garcetti in dubiously supportable ways, it’s essential to recognize just how narrow the Garcetti decision really is.

Properly understood, Garcetti applies only where the speech itself is a work assignment – not where the speech is about work responsibilities. Prosecutor Richard Ceballos lost his First Amendment case because his speech came in a memo he was assigned to write. The same message in an interview with The Los Angeles Times – or on Facebook – might well have been protected.

Indeed, the Supreme Court painstakingly made the distinction in Garcetti between speech that “concerned the subject matter” of an employee’s work (which remains highly protected) versus speech “pursuant to” official duties, which Garcetti left unprotected.

Importing the Garcetti standard into the employment policies of Kansas universities raises two principal legal concerns.

The first is why Garcetti language belongs in a policy about off-hours social media activity at all. Few positions at a university require creating social media as part of official job duties. For the few that do, the Kansas policy is unnecessary. If you are the employee in charge of managing the university’s Facebook page, doing that job badly has always been grounds for removal.

Enactment of a new regulation suggests something more – a desire to extend authority over social media activity that is not a part of the employee’s job. The portentous descriptive – that the college may freely regulate speech “in furtherance of” official duties – is especially ominous for employees (read, faculty) for whom speaking and publishing is an expected credential-builder.

A researcher at Hawaii Pacific University recently created the “Faculty Media Impact Project” (call it “Klout for Kollege”), which attempts to measure individual professors’ influence by online references to their work, including mentions on social media. (Evidencing the blurry line between professors’ online visibility and their institutions, Southern Methodist University recently issued a news release boasting of its #2 national ranking – far outdistancing #17 Harvard – in the inaugural “impact” scores.)

No university employee, particularly not a teaching employee, can be secure of the boundaries where speech “in furtherance of” official duties ends and personal speech begins. That’s a problem.

Restrictions on the content of speech must be so clear and so specific that a speaker can be certain he is protected. Otherwise, speakers will censor themselves for fear of crossing indistinct boundaries.

The second and more legally intriguing concern is whether Garcetti can legitimately be applied to teaching faculty without running afoul of academic freedom.

Two of the 12 federal geographic circuits have recently said no. In September, the Ninth Circuit U.S. Court of Appeals ruled in Demers v. Austin, involving disciplinary action against a Washington State University professor, that “Garcetti does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing.” The ruling echoes a decision by the U.S. Court of Appeals for the Fourth Circuit, Adams v. Trustees of the University of North Carolina at Wilmington.

Decisions from three other federal circuits – the Third, Sixth and Seventh – suggest to the contrary that professors receive no special forgiveness from Garcetti.

By embracing without qualification the Garcetti level of authority over all employee speech, the Kansas Board of Regents inevitably has teed up a future case in its own Tenth Circuit, which has yet to speak to the issue.

Dissenting in the Garcetti case, Justice David Souter prophetically warned that employers would simply broaden employees’ job descriptions so that virtually any speech about the agency came within their official duties. This is no idle fear in the university setting.

To give one concrete example, it is the responsibility of nearly every university employee with a supervisory position – a dean, a coach, a club sponsor – to notify campus authorities upon learning that a student was sexually assaulted. Arguably, complaining in a blog that the college fails to diligently pursue and punish rapists might be speech pursuant to official duties, and consequently, grounds for termination at a supervisor’s complete discretion.

The context in which the Board of Regents enacted this hurry-up policy cannot be overlooked. It came in response to the suspension of David W. Guth, a University of Kansas journalism professor, for an angry outburst on a personal Twitter account blaming the National Rifle Association for the fatal shooting of 12 employees at the Washington Navy Yard on Sept. 16.

Though harsh and tasteless, the posting addressed a disputed political issue – the type of speech to which courts have always afforded special First Amendment dignity, even outside the academic world – and no reasonable reader would have confused the post with an official statement of KU policy.

That the Board of Regents enacted a regulation unmistakably intended to ratify disciplinary action for speech like Guth’s is worrisome. It conveys the message that the proper official response to provocative speech that offends sensitive listeners is to punish the speaker – even on a college campus, where the Supreme Court has always said that extreme views must be given their chance to find an audience (or, as in Guth’s case, to be discredited).

At its heart, the Kansas policy exemplifies a larger problem afflicting all of government – the hair-trigger use of punitive authority whenever the agency’s public image is imperiled. At many, if not most, government agencies today, it is easier to get fired for making the agency look bad than for actually doing your job badly.

The media is filled with stories of police officers, firefighters and teachers who have lost their jobs for entirely legal activity on social media that their supervisors consider “unprofessional.”

The public would justifiably rebel against a “24/7 optimal conduct code” that made it a punishable offense for a teacher to wear a sexy Halloween costume to the shopping mall or enjoy a cocktail in a local restaurant. But let the teacher share a photo of that moment on Facebook, and the same harmless behavior that was publicly viewable to the community in the real world is pronounced to be “bad judgment” and grounds for termination.

Bio

Frank D. LoMonte is executive director of the Student Press Law Center, an advocate for the First Amendment rights of students and educators.